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CAPITAL IMPROVEMENT AND TENANT FITOUT ESCROW AGREEMENT

Contribution Agreement

CAPITAL IMPROVEMENT AND TENANT FITOUT ESCROW AGREEMENT | Document Parties: CEDAR SHOPPING CENTERS IN | Wells Fargo Bank N.A | Cedar Townfair, LLC You are currently viewing:
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CEDAR SHOPPING CENTERS IN | Wells Fargo Bank N.A | Cedar Townfair, LLC

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Title: CAPITAL IMPROVEMENT AND TENANT FITOUT ESCROW AGREEMENT
Governing Law: Pennsylvania     Date: 3/22/2004
Industry: Real Estate Operations     Sector: Services

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                                                             Loan No. 03-0220389

 

 

             CAPITAL IMPROVEMENT AND TENANT FITOUT ESCROW AGREEMENT

             ------------------------------------------------------

 

         This Capital Improvement and Tenant Fit-Out Escrow Agreement (the

"Agreement") is made as of March 17, 2004 between Wells Fargo Bank N.A. f/k/a

Norwest Bank Minnesota, National Association, as Trustee for the registered

holders of NationsLink Funding Corporation, Commercial Mortgage Pass-Through

Certificates, Series 1998-2, in its capacities as lender and escrow agent

("Lender"), and Cedar Townfair, LLC, a Delaware limited liability company

("Borrower").

 

                                    RECITALS

                                     --------

 

A.        This Agreement is being executed in connection with Lender's consent to

         the assumption by Borrower of a mortgage loan to Townfair Center

         Associates, a Pennsylvania general partnership ("Seller") in the

          original principal amount of Ten Million Seven Hundred Thousand and

         No/100 Dollars ($10,700,000.00) (the "Loan"), and the Loan assumption

         is incident to Borrower's purchase of the real property commonly known

         as Townfair Center (Phase I & II), 475 South Ben Franklin Road, White

         Township, Pennsylvania, being more particularly described on Exhibit A

         attached hereto.

 

 

B.        The Loan is evidenced by a Promissory Note (the "Note"), dated February

         13, 1998, made by Seller and is secured by, among other things, an

         Open-End Mortgage, Assignment of Leases and Rents and Security

         Agreement (the "Security Instrument"), dated as of February 13, 1998,

         encumbering that certain real property situated in the County of

         Indiana, Commonwealth of Pennsylvania ("State"), as more particularly

         described on Exhibit A attached hereto and incorporated herein by this

         reference, together with the buildings, structures and other

         improvements now or hereafter located thereon (said real property,

         buildings, structures and other improvements being hereinafter

         collectively referred to as the "Property") and by other documents and

         instruments, and the Lender's consent to the transfer of the Property

         to Borrower is being made pursuant to a Consent and Assumption

         Agreement with Limited Release dated of even date herewith (the

         "Assumption Agreement") (the Note, Security Instrument, Assumption

         Agreement and such other documents, agreements and instruments, as the

         same may from time to time be amended, modified, extended, severed,

         split, divided, spread, restated, substituted, supplemented,

         consolidated, renewed or replaced, being collectively referred to

         herein as the "Loan Documents");

 

 

C.        As a condition to Lender giving its consent to the assumption of the

         Loan by Borrower, the transfer of the Property to Borrower and the

         construction of a new 5,000 square foot building on the Property,

         Lender has required that Borrower deposit the Escrow Funds (hereinafter

         defined) with Lender pursuant and subject to the terms of this

         Agreement.

 

         NOW, THEREFORE, to induce Lender to consent to the transfer of the

Property to Borrower, consent to Borrower's assumption of the Loan and consent

to the construction of a new 5,000 square foot building on the Property and in

consideration of the premises and the due performance of the commitments and

agreements hereinafter set forth, and other valuable consideration, the receipt

and sufficiency of which are hereby acknowledged, the parties hereto agree as

follows:

 

1.        Escrow. Borrower shall establish and maintain an escrow of funds with

         Lender pursuant to the terms of this Agreement for the payment of

         future customary and reasonable bona fide costs and expenses incurred

         by Borrower in connection with the (i) construction of a 5,000 square

         foot building on the Property ("New Building") and (ii) completion of

         tenant improvements required to be paid by Borrower in connection with

         a lease ("New Lease") for approximately 3,000 square feet of space in

         the New Building (the "Leasing Matters").

 

 

 

                              

Midland 299                              1

 

 

 

 

<PAGE>

 

 

2.        Deposit of Escrow Funds. All amounts held by Lender at any time in

         escrow pursuant to this Agreement are the "Escrow Funds". On the date

         hereof, Borrower shall make an initial deposit of $393,310.00 with

         Lender, to be held in escrow by Lender according to the terms of this

         Agreement. The Escrow Funds shall be disbursed or applied only as

         specified in this Agreement.

 

 

3.        Escrow Account. Lender agrees to hold all Escrow Funds in an Eligible

         Account (hereinafter defined) selected by Lender from time to time in

         the exercise of its sole discretion (the "Escrow Account"). No earnings

         or interest on the Escrow Funds shall be payable to Borrower. The

         Escrow Funds shall not constitute a trust fund and may be commingled

         with other monies held by Lender. The Escrow Account shall be held in

         the name of Lender and shall be within its sole and exclusive control,

         and all funds deposited in the Escrow Account shall be for the account

         of Lender. Except as provided herein, Borrower shall have no right to

         or interest in the Escrow Funds or Escrow Account and shall have no

         authority to withdraw Escrow Funds from the Escrow Account. An

         "Eligible Account" shall mean either (a) an account maintained with a

         depository institution or trust company, the long term unsecured debt

         obligations of which are rated in one of the three highest rating

         categories by any Rating Agency (hereinafter defined) acceptable to

         Lender at the time of any deposit therein or (b) a trust account

         maintained with a federally or state-chartered depository institution

         or trust company acting in its fiduciary capacity, subject to

         regulations regarding fiduciary funds on deposit similar to 12 C.F.R.

          Section 9.10(b). The term "Rating Agency" shall mean a nationally

         recognized credit rating agency (including, without limitation,

         Standard & Poor's Rating Group, Fitch Investors Service, L.P., Moody's

         Investors Service, Inc. or Duff and Phelps Credit Rating Co., and their

         respective successors and assigns).

 

 

4.        Permitted Investments. Lender may direct the depository institution

         maintaining the Escrow Account to invest the Escrow Funds in one or

          more of the following obligations or securities (each a "Permitted

         Investment") having, at the time of purchase, the required ratings, if

         any, provided for below:

 

 

         a. Direct obligations of, or guaranteed as to timely payment of

            principal and interest by, the United States or any agency or

            instrumentality thereof provided that such obligations are backed by

            the full faith and credit of the United States of America;

 

 

         b. Direct obligations of, or guaranteed as to timely payment of

            principal and interest by, FHLMC, FNMA or the Federal Farm Credit

            System;

 

 

         c. Demand and time deposits in or certificates of deposit of, or

            bankers' acceptances issued by, any bank or trust company, savings

            and loan association or savings bank, provided that the short-term

            unsecured debt obligations of such depository institution or trust

            company must have the highest rating available for such securities

            by two or more Rating Agencies acceptable to Lender;

 

 

         d. Commercial or finance company paper that is rated by two or more

            Rating Agencies acceptable to Lender in their highest short-term

             unsecured rating category at the time of such investment and is

            issued by a corporation the outstanding senior long-term debt

            obligations of which are then rated by two or more Rating Agencies

            in one of their two highest long-term unsecured rating categories;

 

 

 

 

                                        2

 

 

<PAGE>

 

         e. Repurchase obligations with respect to any security described in

            clause (a) or (b) above entered into with a bank or trust company,

             savings and loan association or savings bank, provided that the

            short-term unsecured debt obligations of such depository institution

            or trust company must have the highest rating available for such

            securities by two or more Rating Agencies acceptable to Lender;

 

 

         f. Units of taxable money market funds which funds are regulated

            investment companies, seek to maintain a constant net asset value

            per share and invest solely in obligations backed by the full faith

            and credit of the United States and repurchase agreements using full

            faith and credit issues as collateral and are rated in the highest

            rating category available by a Rating Agency acceptable to Lender.

 

 

5.        Pledge and Security Interest. As additional security for the payment

         and performance by Borrower of all duties, responsibilities and

         obligations hereunder and under the Loan Documents, Borrower hereby

         unconditionally and irrevocably assigns, conveys, pledges, mortgages,

         transfers, delivers, deposits, sets over and confirms unto Lender, and

         hereby grants to Lender a security interest and a valid and perfected

         first lien in (a) the Escrow Funds, (b) the Escrow Account, (c) all

         insurance of the Escrow Account, (d) all accounts, contract rights and

         general intangibles or other rights and interests pertaining thereto,

         (e) all sums now or hereafter therein or represented thereby, (f) all

         replacements, substitutions or proceeds thereof, (g) all instruments

         and documents now or hereafter evidencing the Escrow Funds or the

         Escrow Account, (h) all powers, options, rights, privileges and

          immunities pertaining to the Escrow Funds or the Escrow Account

         (including the right to make withdrawal therefrom), and (i) all

         proceeds of the foregoing. Lender may deliver notice of its interest in

         the Escrow Funds and Escrow Account at any time to the financial

         institution wherein the Escrow Account has been established, and Lender

         shall have possession of all passbooks or other evidences of such

         Escrow Account. Borrower hereby assumes all risk of loss with respect

         to amounts on deposit in the Escrow Account, except to the extent

         caused by the gross negligence or intentional misconduct of Lender.

         Borrower hereby agrees that the advancement of Escrow Funds from the

          Escrow Account as set forth herein is at Borrower's direction and is

         not the exercise by Lender of any right of set-off or other remedy upon

         an Event of Default (as defined in the Loan Documents). Borrower hereby

         waives all right to withdraw Escrow Funds from the Escrow Account,

         except upon full satisfaction of all amounts then due and payable under

         the Loan. Borrower agrees to execute and deliver on demand any and all

         documentation requested by Lender to further evidence or perfect such

         assignment, including, without limitation, Uniform Commercial Code

         financing statements. Borrower hereby irrevocably constitutes and

         appoints Lender as its attorney-in-fact, with full power of

         substitution and transfer, to execute and deliver any and all such

         documentation. The power of attorney hereby granted shall be

         irrevocable and coupled with an interest. This Agreement shall

         constitute a Security Agreement under the Uniform Commercial Code as

         enacted in the Commonwealth of Pennsylvania and upon an Event of

         Default, Lender may exercise any or all of the remedies available at

         law or in equity including, without limitation, the remedies specified

         in this Agreement and the remedies available to a secured party

         following default as specified in such Uniform Commercial Code. Lender

         and Borrower hereby acknowledge and agree that Lender has a valid and

          perfected first priority lien on, and security interest in, any Escrow

         Funds now or hereafter held in


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